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District Court 17 March 2014

R v Antony Paul Hanney

[2014] NSWDC 13

Sexual offences
SEXUAL INTERCOURSE WITHOUT CONSENT INDECENT ASSAULT

Citation: R v Antony Paul Hanney [2014] NSWDC 13
Court: District Court of New South Wales
Date: 17 March 2014
Judge(s): Mahony SC DCJ

Background

The offender pleaded guilty to two offences arising from events on 30 September 2012 at a private hospital in Wagga Wagga. Having been drinking heavily throughout the day, he gained entry to the hospital by following a visitor through a security door and changed into surgical scrubs found in a theatre change room.

He then entered the rooms of two female patients. The first victim, aged 77 and recovering from vaginal surgery earlier that day, was digitally penetrated without consent. The second victim, admitted for a heart condition, was touched on her vaginal area over her clothing before she alarmed him by swinging her arm at him. The offender left the hospital and was arrested two days later when he attended a police station to report his car missing.

The offender had been in custody since 2 October 2012. The sentence hearing took place in the Wagga Wagga District Court on 19 February 2014.

  • What were the appropriate sentences for the offences of sexual intercourse without consent (s 61I, Crimes Act 1900) and indecent assault (s 61L, Crimes Act 1900)?
  • What weight should be given to the offender's extreme intoxication and claimed lack of memory as mitigating factors?
  • Were there special circumstances justifying a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999?
  • How should the sentences be structured, including whether they should be served concurrently or cumulatively?

Decision

His Honour identified several aggravating features. The offences were committed against vulnerable victims: both were hospital patients, one elderly and recovering from surgery. The offender had exploited the hospital environment by disguising himself in scrubs to appear as medical staff, which the court found added to the gravity of the conduct. The offences involved a breach of the trust and safety that hospital patients are entitled to expect.

In terms of mitigation, the court accepted the guilty pleas, the offender's expressions of genuine remorse, and his lack of any prior sexual offending. The psychiatric evidence from Dr Furst indicated the offender was likely in an "alcoholic blackout" during the offences. While the court acknowledged that extreme intoxication could reduce moral culpability to a limited degree, it did not treat this as a significant mitigating factor in a case involving such serious offending against defenceless patients.

The standard non-parole period for the s 61I offence is seven years. The court determined that a non-parole period below the standard was warranted, principally because of the guilty plea, genuine remorse, and absence of prior sexual offending history. His Honour found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, citing the offender's need for intensive rehabilitation in custody and on parole, and the partial accumulation of sentences.

The sentence for the s 61I offence was set at 5 years and 6 months total imprisonment, with a non-parole period of 3 years and 6 months. The indecent assault (s 61L) attracted a fixed term of 18 months, served partially concurrently. The total effective sentence across both offences was 6 years.

Orders Made

  • Count 1 (s 61I, sexual intercourse without consent): Convicted. Non-parole period of 3 years and 6 months, commencing 2 April 2013 and expiring 1 October 2016. Balance of sentence of 2 years, expiring 1 October 2018. Total sentence: 5 years and 6 months.
  • Count 2 (s 61L, indecent assault): Convicted. Fixed term of 18 months commencing 2 October 2012 and expiring 1 April 2014, served partially concurrently with Count 1.
  • Parole eligibility date: 1 October 2016.
  • Total sentence for both offences: 6 years.
  • Recommendation that the offender be placed in a custody-based intensive treatment program for sexual offenders, together with other relevant rehabilitation programs.
  • Exhibits returned.

Key Takeaways

  • The District Court treated the vulnerability of the victims, particularly their status as hospitalised patients, as a significant aggravating factor that elevated the seriousness of the offending beyond the standard case.
  • Disguising oneself as hospital staff to gain the trust of patients was treated as a further aggravating feature, reflecting a deliberate exploitation of the hospital environment even where the offender had no conscious recollection of his actions.
  • A non-parole period below the seven-year standard was available where the combination of a guilty plea, genuine remorse, and absence of prior sexual offending provided sufficient justification, notwithstanding the serious objective gravity of the offences.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances can be established by reference to both the offender's rehabilitation needs and the structural effect of partially accumulating multiple sentences.
  • Extreme intoxication and an alleged alcoholic blackout were acknowledged as potentially reducing moral culpability to a limited extent, but did not operate as strong mitigating factors in the context of serious sexual offending against defenceless and vulnerable victims.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Ibbs v R (1987) 163 CLR 447
- Pearce v R (1998) 194 CLR 610